Private Member's Bill on the JSC: Time for transformation of a different kind

The National Development Plan makes certain proposals on the Judicial Service Commission which I have taken up in a Private Member's Bill as the Constitution 19th Amendment Bill.

The President has reiterated government's support for the NDP, and it also enjoys the support of the official opposition. The two thirds vote without which Constitutional change cannot occur is therefore in principle available. In addition, the Justice Minister and I share reservations about certain aspects of the NDP proposals on the JSC, and those are not only excluded but corrected.

The NDP proposes "reforms including the composition of the JSC itself, which is argued to be too large to function effectively, and to be hamstrung by political interests".

To downsize and to deal with the preponderance of politicians as the NDP proposes, I have simply reduced by half each of the categories directly elected (NCOP, NA) and, in the case of the four Presidential appointees, also limited their participation to the selection of judges where the President does not have a discretion.

The President chooses Constitutional Court judges from a list of nominees prepared by the JSC which must include three names more than the number of places to be filled. He also appoints the Chief Justice, Deputy Chief Justice, President of the Supreme Court of Appeal and Deputy President after some consultation. The four Presidential representatives are superfluous, and should retain a role only in the selection of High Court judges and advising government on the administration of justice.

The NDP's other proposals on the JSC include the need to address a lack of impartiality in its selection process. This is most easily addressed by including in the Constitution a section requiring the equal assessment of candidates.

The NDP also asks for clear criteria for the appointment of judges. To achieve this, I propose that "appropriately qualified" in section 174 (1) must mean demonstrably qualified to perform the judicial function. Other wording is of course also possible.

What is not satisfactory is to say (as the NDP does) that the JSC should "elaborate further guiding principles to build consensus on the qualities and attributes of the ‘ideal South African judge'", and that "the criteria should include a progressive philosophy and an understanding of the socio-economic context in which the law is interpreted and enforced". It is on aspects of this last statement that the Justice Minister and I both have reservations. A commitment to Constitutional values is the only judicial philosophy that can properly be required.

This matter cannot in fairness be left to the Judicial Service Commission to elaborate, when it already displays difficulties in interpreting the constitutional provisions as they stand. It has conflated and treated as co-equal the requirements concerning qualification and fitness, and those concerning representivity, which are supposed to be simply a consideration after the establishment of fitness and qualification. What is worse, it has listed a quality like integrity, which is part and parcel of fitness, as "supplementary criteria ".

My Private Member's Constitutional Amendment also requires that all judges must be South African. Whatever considerations were applicable at the time of negotiation have surely fallen away. South Africa's judges must be South Africans.

The Government Gazette containing Dene Smuts's Private Member's Bill is No. 36608, dated 28th June 2013, and is available at www.gpwonline.co.za. The Bill, amending the Constitution, is brought in her personal capacity as a Member of Parliament as the Constitution and the Rules of Parliament require. The purpose of the Gazette is to invite interested parties and institutions to submit written representations on the Bill to the Secretary to Parliament care of [email protected]. Provincial Legislatures are also being asked to give their views, if any, and the National Council of Provinces will be invited to debate the Bill, as required by Section 74 of the Constitution. The Bill will be introduced in the National Assembly after the winter recess.

Statement issued by Dene Smuts MP, DA Shadow Minister of Justice and Constitutional Development, June 30 2013

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